IN THE CASE OF:	  

		BOARD DATE:	      6 January 2011

		DOCKET NUMBER:  AR20100018361 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records to show he elected Reserve Component Survivor Benefit Plan (RCSBP), former spouse coverage, prior to reaching age 60.

2.  The applicant states he made an election to suspend coverage with the full knowledge that he would be able to resume former spouse coverage at any time. He held this belief because he was given advice by the Retirement SBP section. He called several times to verify this fact and he was given conflicting information, only to be told that he could not re-elect former spouse coverage at any time.  In June 2010, he learned that the information he was given in 2007 was incorrect.  Due to personnel turnover and other staffing issues, the consistency of correct information is nonexistent.  Even the Chief of Transitions and Separation admitted it.

3.  The applicant provides a copy of his:

* Divorce Decree
* DD Form 2656-5 (RCSBP Election Certificate)
* DD Form 2656-6 (SBP Election Change Certificate)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 25 February 1958.

2.  He was appointed as a U.S. Army Reserve (USAR) second lieutenant and he entered active duty on 4 June 1982.  He married his spouse, I----, on 12 June 1982.  He served in various staff or leadership positions and he was honorably released from active duty on 1 August 1993.

3.  He was transferred to the USAR Control Group (Reinforcement) where he served in a troop program unit and he attained the rank of lieutenant colonel.

4.  On 3 September 2003, the U.S. Army Reserve Personnel Command, St. Louis, MO, issued the applicant his Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This letter notified him that he had completed the required years of qualifying Reserve service and he would be entitled to retired pay upon application at age 60.

5.  On 23 November 2003, he completed a DD Form 2656-5 wherein he indicated he was married to I---- but had no dependent children.  He further elected "spouse only" coverage, full amount, option C (immediate coverage), under the RCSBP.  He and a witness authenticated this form by placing their signatures in the appropriate blocks.

6.  On 16 March 2006, he and I---- were divorced.  The divorce decree stipulates his spouse would be entitled to 50 percent (%) of his military retirement benefits but is silent regarding the RCSBP/SBP.

7.  On 10 May 2007, he completed a DD Form 2656-6 wherein he suspended spouse coverage based on his divorce.  The form he completed clearly stated "A member with spouse coverage who divorces AND who does not elect former spouse coverage is automatically in a "Suspended Coverage" status.  To elect former spouse coverage, submit a DD Form 2656-1 (Former Spouse Election Certificate)."

8.  On 7 June 2010, Headquarters, 63rd Regional Support Command, Moffett Field, CA, issued the applicant orders transferring him to the Retired Reserve, effective 1 July 2010.

9.  The applicant is currently unmarried and he will turn age 60 on 25 February 2018.

10.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.  Since its creation, it has been subjected to a number of substantial legislative changes.
11.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP coverage for former spouses of retiring members.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

12.  Public Law 95-397, enacted 30 September 1978, provided a way for Reserve Component members who qualified for Reserve retirement, but were not yet age 60 and eligible to participate in the SBP, to provide an annuity for their survivors should they die before reaching age 60.  Three options were available:  (a) elect to decline enrollment and choose at age 60 whether to start SBP participation; (b) elect that a beneficiary receive an annuity if they die before age 60, but delay payment of it until the date of the member's 60th birthday; or (c) elect that a beneficiary receive an annuity immediately upon their death if before age 60.  Once a member elects either option B or option C in any category of coverage, that election is irrevocable.  Option B and C participants do not make a new SBP election at age 60.  They cannot cancel SBP participation or change options they had in RCSBP - the options automatically roll into SBP coverage.

13.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP/RCSBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP/RCSBP or was still on active duty and had not yet made an SBP/RCSBP election.

14.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon receipt of his 20-year letter, the applicant executed a DD Form 2656-5 on 23 November 2003, electing "spouse" coverage under option C, immediate coverage.  He and his spouse were divorced on 17 March 2006.  Their divorce decree did not require him to make a former spouse election.  He had the opportunity to willingly do so within one year of their divorce but he elected to suspend coverage.  

2.  SBP and RCSBP elections are made by category, not by name.  Once the applicant and his spouse, I----, were divorced, she was no longer his spouse and no longer an eligible RCSBP beneficiary.  A change in RCSBP beneficiary would have had to have been a strictly voluntary action on the part of the applicant within one year of their divorce, which the evidence of record shows he did not make.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________X__________
       	     CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100018361



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ABCMR Record of Proceedings (cont)                                         AR20100018361



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